The Chronicle Review

Supreme Tension

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In 1965, President Lyndon Johnson introduces Abe Fortas (right) as his nominee for the Supreme Court.
August 20, 2017

A struggle for power and allegiance between a president and the Justice Department; a country fractured over race relations; a Supreme Court nominee derailed and another facing the threat of filibuster; accusations of cronyism and political corruption; the conservative championing of "law and order"; near-paranoid levels of presidential concern over FBI investigations and wiretapping; heated debates over free speech on college campuses.


The Long Reach of the Sixties: LBJ, Nixon, and the Making of the Contemporary Supreme Court

By Laura Kalman

(Oxford University Press)

It is difficult to read the legal historian Laura Kalman’s new book, The Long Reach of the Sixties: LBJ, Nixon, and the Making of the Contemporary Supreme Court, without taking note of the chilling parallels between the decade she examines and the politics of the present.

In her engagingly written history, Kalman, of the University of California at Santa Barbara, draws on archival data from presidential libraries, as well as recently released recordings of telephone conversations of Presidents Lyndon Johnson and Richard Nixon. She offers new insights into how their actions and decisions had ripple effects afterward for the shape and character of the Supreme Court.

The book has three stated aims: to ground Johnson’s and Nixon’s court strategies in the political histories of their administrations; to place the court’s ideological battles within struggles among the three branches of government and interest groups; and to show how these dynamics effectively "fixed the image of the Warren Court as ‘activist’ and ‘liberal.’"

By and large, Kalman successfully accomplishes these aims. She uses the recordings to reveal the complex motivations for the two presidents’ high-court nominations. Those were shaped by personal and political ambition, interbranch dynamics, the media, and considerations of the historical legacy each president wished to leave on the bench. The book also links the tenor of Supreme Court nominations from the ’60s forward to the politics and legacy of the Warren Court. With each of the confirmation battles she explores, Kalman shows that it was not just the nominee but also "the Warren Court that was on trial."

More provocatively, Kalman attempts to recast the traditional narrative of where and when the contemporary era of Supreme Court politics began. Conventional wisdom blames the politicized, highly controversial failed confirmation of Robert Bork in 1987 for inaugurating our current era of partisan and polarized Supreme Court confirmation battles. That era reached a crescendo this past year with the Senate majority’s unprecedented 293-day obstruction of Merrick Garland’s nomination hearings.

Kalman argues, however, that our contemporary era "began over 20 years earlier" with LBJ and Nixon. And while she might have worked a bit harder in the closing chapters to support this claim — making more visible and explicit the connective tissue between earlier nominations and what happened with Bork — Kalman does show how some of the seeds of the court’s politicization were sown in the ’60s and ’70s. For example, she draws parallels between the Bork fight and earlier clashes over the failed nominees Clement Haynsworth and Harrold Carswell, and the failed effort to elevate Justice Abe Fortas to chief justice.

Nixon's 'scattershot and incoherent' approach to selecting nominees underscores the importance of having an organized gatekeeper to shepherd candidates through the nomination process.
In the preface, Kalman writes that "if political science is too neat to instruct Americans on how to govern, history is too messy." I think she undersells the value of her history as instructive regarding broader trends in politics and governance. As a political scientist, I could not help but see many of the episodes she details as descriptive of and consonant with the work in my field.

For example, Kalman’s detailed and dramatic recounting of Nixon’s "scattershot and incoherent" approach to selecting nominees underscores the importance of having an organized "gatekeeper" for credentialing talent, vetting candidates, and shepherding them through the nomination process. For Republicans and ideological conservatives, such an organization did not meaningfully exist prior to the 1980s, when the Federalist Society for Law and Public Policy Studies was founded.

Her narrative also illuminates the phenomenon political scientists refer to as "judicial drift" — conservative judges and justices moving left in their views in order to gain approval from liberal journalists and left-leaning social circles in D.C. We see anxiety about "judicial drift" made manifest in conversations between Nixon, his advisers, and his nominees. Nixon wanted to know whether the wife of a potential nominee was "‘a socialite’ who would fall prey ‘to that goddamn Georgetown set.’" And he asked Harry Blackmun point blank, "Can you resist the Washington cocktail party circuit?" These anecdotes illustrate Republicans’ long-term preoccupation with the capital’s strong social and psychological leftward pull. How they resolved it was to develop, over the course of the next few decades, a conservative "counter-elite."

The Long Reach of the Sixties surprised me at several turns. I did not expect Chief Justice Earl Warren to appear so frequently in the narrative, especially after he retired. As Kalman shows, Warren sought to be an active architect of his own legacy, politicking for the Warren Court well after he had left the bench. I was also intrigued by Kalman’s claim that today’s Ivy saturation of the Supreme Court can be seen as a sustained reaction against the patronage model and perceived cronyism of LBJ and earlier presidents. It is a point largely absent from the many journalistic pieces decrying the lack of diversity on the court, and one scholars and court-watchers should heed.

Rich in detail and peppered with intriguing insights, Kalman’s study will benefit legal historians, political scientists, court watchers, and others who find themselves wondering what history can teach us about the politics of the present.

Amanda Hollis-Brusky is a professor of politics at Pomona College.